The U.S. Federal Court of Appeals has once again upheld a jury's verdict that Microsoft willfully infringed on patents awarded to i4i.

The verdict, which the appeals court first affirmed in December, required Microsoft to pay more than US$240 million in damages and forced it to remove a feature in versions of Microsoft Word 2007 starting in January. Microsoft had been charged with infringing a patent owned by i4i with a feature in Word 2003 and 2007 that lets people create custom XML documents.

Microsoft asked the appeals court to reconsider its decision, and on Wednesday the appeals court upheld its previous affirmation of the district court ruling. Much of the latest decision is identical to the December document, except for an expanded explanation of the three-judge panel's decision to uphold the "willfulness" issue.

"A reasonable jury could have concluded that Microsoft 'willfully' infringed the '449 patent based on the evidence presented at trial," the judges wrote. The decision pointed to evidence presented at the trial showing that Microsoft employees attended demonstrations of i4i software and received i4i sales kits that identified the software as patented technology. This piece of evidence and others imply that Microsoft was aware of the i4i patent, the decision says.

"Similarly, there is no evidence Microsoft ever made a good faith effort to avoid infringement; internal emails show Microsoft intended to render i4i's product 'obsolete' and assure 'there won't be a need for [i4i's] product,'" the judges wrote.

The panel will now circulate the document to the rest of the judges on the appeals court, who will decide whether to take up Microsoft's request for an en banc review. If they do, that would mean that all 12 appeals court judges will reconsider the case.

There is no set time frame for the court to decide if it will accept the en banc request, but Loudon Owen, chairman of i4i, expects the court to decide in the next four to six weeks.

If the judges decide against an en banc review, Microsoft can ask the Supreme Court to hear the case, Owen said.

He was pleased with Wednesday's decision. "From our perspective, there are only so many more avenues for appeal for them," he said. "It also resulted in an even more detailed and structured decision in our interest."

Microsoft did not immediately reply to a request for comment.

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